Romeo, Juliet and Jury Nullification

The most profound form of "stranger danger" apparent in the nation's criminal justice system arises not in the form of a sexual predator lurking in the shadows. No, the stranger who presents the gravest danger to our society is the lawmaker, judge or prosecutor who seeks to transform the criminal justice system into a blind assembly line. Only if we the people take back the power that is rightfully ours can justice be done.

Consider the so-called Romeo and Juliet laws criminalizing consensual sexual contact between young people when one of the participants is below the age of consent. 

Laws raising the age of consent to 16, 17 and 18 years of age were enacted throughout the United States in the late nineteenth century in response to rapid industrialization. There was a fear that young girls leaving their homes in rural communities would be subjected to danger in the cities where factory jobs were plentiful. Activists responded by insisting that the age of consent be raised from 10 and 11 years old. The law was passed not to prohibit acts of curiosity or even love between young people. It was to protect the young from stranger danger.

These laws are still on the books today, and many a young person is now in prison, a felon, a lifetime registrant as a sex offender or otherwise consigned to the indefinite purgatory known as sex offender treatment for the simple act of sexual curiosity. We put these young people on trial and never let the jury know what the consequences of a guilty verdict entail.

When these crimes are charged, a defendant is cast into the criminal justice system. And it is at this point that the newest form of stranger danger takes place. Jurors are often told only what must be proven by the state to find a defendant guilty. Jurors are given no, or, depending on the jurisdiction, little responsibility for punishment. We ask jurors to determine guilt in a vacuum, divorcing the crime from the consequences of being found guilty of it. This is moral cowardice.

The result is a system in which no one really accepts responsibility for what happens to a young person at trial. Lawmakers pass laws in their legislative sanctuary without any particular knowledge of the person on whose neck the law's yoke will fall. This one size fits all approach often works injustice.

Judges then turn their back on justice when a defendant appears before them. If lawmakers mandate a mandatory minimum sentence, then a judge imposes it. The judge disclaims responsibility taking the judicial version of the Nuremberg defense: he or she is, after all, just following orders.

Prosecutors, too, turn away from the consequences of their acts. Legislators create the crimes and penalties. Prosecutors just move the widgets down justice's conveyor belt.

In this way, government becomes unaccountable. When three branches of government -- the legislature, the courts and the executive in the form of the prosecution -- all turn their backs on one another, link arms, and dance a chaotic jig the result is hardly a thing of beauty.

So where do defendants turn for justice? It used to be a jury was told it was free to serve as judge not just of the facts, that is whether something occurred, but also of the law, to wit: whether the law was correctly applied. Almost every state now disapproves of jury nullification, as do the federal courts.

My sense is that we need to revisit jury nullification. Folks involved in combating the excesses of the nation's failed war on drugs have done good work in focusing attention on jury nullification. Those in the reform community on sex offender laws need to forge a link with with drug law reformers and spread the word that jury nullification, i.e., teaching juries about the consequences of what they do and of their right to refuse to be conscripted as assembly-line workers engaged in the detached work of finding so-called facts regardless of the consequences, is an important American tradition that must be revived.

Here is a link you can use to learn more about nullification. Is nullification unpatriotic? No. It's as American as apple pie. Don't forget for a moment that the greatest stranger danger lurking in the courts comes in the form of judges, lawmakers and prosecutors who don't want jurors to know the truth about what a jury is doing and why.  www.jurorsforjustice.com

Romeo, Romeo, A Sex Offender? Or Merely Young?

The single most important criminal justice reform within reach in each statehouse is the elimination of mandatory minimum prison sentences and consequences. The ends of justice require it. Sound economics counsel it. Only anger and fear stand in the way of meaningful reform.

Law students are taught, and judges still pretend, that a judgment of guilty and a criminal sentence should accomplish four purposes: deterrence of the individual who committed the crime, deterrence of others who might commit a similar crime, rehabilitation of the guilty and retribution. We teach that to practitioners of the law, but not to lawmakers. They are presumed to know these things.

I say that lawmakers need re-education about the purposes of the criminal justice system. This is necessary because lawmakers increasingly resort to a one-size-fits-all mindset when it comes to mandating penalties for crimes. The fact of the matter is that offenders, and that includes sex offenders, are rarely identical. Justice requires a measured and calibrated response to the nature of the offense and the character of the offender.

I have sat in judge's chambers and listened to private agonizing by both the judge and the prosecution. A young man who confessed to a Romeo and Juliet crime, falling in love with a young girl below the age of consent, but consenting nonetheless, must be sent to prison, convicted of a felony, be required to register as a sex offender, undergo treatment for sexual misconduct as a consequence of his inevitable probation. These four horsemen appear at the doorstep to the judge's chambers, but each horseman smirks: they know that some of the men and a few of the women in the room are guilty of doing just what the young man did, they just weren't caught. So the judge does his job, accepts the defendant's guilty plea, and sends him to prison. It is as inevitable as an assembly line.

A criminal offense, and the consequences of committing the offense, including prison and registration as a sex offender, are mandated by lawmakers. Yet these lawmakers are never required to meet the men and women sentenced, or to make any assessment of what risk, if any, they pose to society. In a legislative chamber, lawmakers strike out in the name of decency and innocence. Protecting children is their battle cry. Who would fail to rally to such a standard? The trouble is that these rallying cries often deafen those who want to listen to what justice requires.

The crime of statutory rape has a history. Prior to the industrial revolution, the age of consent was low in many states, reaching to 10 years of age in some states. It was assumed that parents and local communities could police the conduct of young people learning to cope with newly emergent hormones. When young women began to flock to cities from their farms in search of factory work, young women were unsupervised in urban centers. The Women's Christian Temperance Union sponsored legislation increasing the age of consent to 16 and 18 years old. This reform swept the states in the 1880s, and its product remains the law today.

What prompted the law was not a sense that love was a crime, but a fear familiar to current efforts to expand the sex offender registry at every chance: stranger danger. If young women were far from home, any predator could take advantage of them. The law was never intended to crush those young men and women who fell in love before lawmakers thought they should. Romeo ought not to be required to register as a sex offender.

I am not writing in favor of decriminalizing sex offenses. These crimes cut to the very core of a person's sense of self-worth and dignity. When the crimes occur, they should be punished. But I am proposing that mandatory minimum sentences be eliminated so that judges can decide what the appropriate punishment and consequences should be. Social outrage can be expressed by legislative pronouncements of sentences and consequences in terms of rebuttable presumptions.

A rebuttable presumption is a target. Lawmakers can say that for a given offense, a mandatory term of imprisonment of, let's say, one year is presumed reasonable. If a party facing such punishment thinks the prison term should be less than that, he and his lawyer would be free to rebut the presumption by giving the judge reasons to impose a lesser sentence. Thus, in the case of a Romeo and Juliet law, society could maintain its judgment that sex below a certain age is unwise and prohibited, but realize that to every rule there are exceptions. And what justification is there to require registration as a sex offender for consensual conduct?

I believe reform advocates in each state and on the federal level should target statutes requiring mandatory prison time and registration for extinction. Each time you read the word "shall" in a statute, a terms of art eliminating judicial choice, rewrite the law to state "should, unless given reasons to do otherwise." Judges will often do the right thing if lawmakers let them. We need to persuade legislators to give judges the freedom to make judgments.

Reforming Sex Offender Legislation

I'll be speaking this weekend at a conference in Washington, D.C., devoted to the reform of sex offender legislation. One hundred or so folks from around the nation are gathering to brainstorm on what to do about a body of law that is often harsh and indiscriminate. I should have reached out to readers here long ago for suggestions, but I didn't. If you have suggestions, please leave them in the comments section here. There's still time for me to amend my remarks.

My sense is that relief must come in the form of legislative action. The courts are simply ill-equipped to do much good. There are rare victories, such as the Ohio ruling by the state Supreme Court removing offenders from the sex offender list because the registration requirement violated the state's separation of powers doctrine. But this rare legal victory can be undone simply by drafting new requirements through the appropriate branch of government. Politics is where relief will come, not the courts.

What I see behind closed doors is frustration among judges and prosecutors in the following areas:

1. Requiring prison time and making felonious the violation of so-called Romeo and Juliet laws. These statutes typically involve claims of statutory rape between a minor and a suitor close in age. Consent is not a defense in these cases, and prison is mandatory. My sense is that there is support for legislation eliminating the requirement for prison time in such cases. It might also make sense to downgrade the offense from a felony to a misdemeanor to avoid the disabling effect of a felony on a young person's career chances.

2. Elimination of mandatory prison time for Internet-related crime in which there was neither attempted nor actual physical contact with another person. Many states and the federal government now require prison sentences for possession of even a handful of pornographic images of children. Judges often despair over the rigidity of statutory schemes requiring imprisonment of defendants in which there are no tangible victims proximately related to the possessory offense.

3. Increased accessibility to diversionary programs for those accused of child pornography offenses. Connecticut, for example, recently enacted a new psychiatric accelerated rehabilitation program. This program permits folks to submit to a period of probation and to get treatment for mental illness. If the applicant successfully completes the program, the criminal case is dismissed. The only problem with this law is that lawmakers have decreed that it is inapplicable for those accused of possession of child pornography.
This legislative decision should not trump medical judgment.

4. Elimination of mandatory prison time for non-violent sex offenses. Lawmakers can easily and constructively express social disapproval of deviant conduct by rewriting these statutes to create a presumption in favor of prison time. But this presumption should be rebuttable for good cause shown.

5. The current mania over sex offender registries is little more than moral panic. The overwhelming majority of sex offenses are committed against victims by family members or caregivers with direct and consensual access to the victim. Sex offender registries are fueled by fear of stranger danger. Putting a man who abused a family member on a public registry merely stigmatizes an offender who little danger to the community at large. There should be a broader use of law-enforcement only registrations. These lists should not be disseminated to the public.

There is traction for these ideas among judges and prosecutors. When no one is watching, and they are free to speak their mind, judges and prosecutors are often in despair about a law too rigid in conception, and too inflexible in implementation to serve the ends of justice.

What other options have you heard mentioned behind closed doors?

What To Do About Child Pornography Laws

Criminal defense lawyers have two reactions to cases involving possession of child pornography: either the lawyer does not take such cases as a matter of principle, or the lawyer takes the case with a sense of foreboding approaching despair. The law involving possession of child pornography is harsh; I will go so far as to call it savage.

An article in the forthcoming issue of the Washington Law Review offers limited hope. "Disentangling Child Pornography from Child Sex Abuse," Carissa Byrne Hessick, 88 Wash. U.L.Rev. (2010).

Hessick seeks to drive an empirical and logical wedge between the frequent claim that possession of child pornography is identical to, or worse than, the actual physical abuse of a child. These arguments are familiar. We justify long sentences by saying that if there were no market for prohibited images there would be no supply. Punish consumers and suppliers will evaporate. It is the suppliers, after all, who engage in hands on abuse. We saw how well that worked in the war on drugs.

This punishment by proxy theory raises troubling due process arguments, Hessick notes. It conflates actual harm with tangential harm. A person looking at a picture is not abusing a child, except in some attenuated, metaphorical sense. Indeed, there is little empirical evidence to suggest that looking and touching are related. Hessick goes so far as to assert that there is no empirical evidence linking actual abuse of children with mere photographs. Indeed, Hessick notes, even the National Center for Missing and Exploited Children reports that in 84 percent of child pornography cases there is no empirical association between possession of pornography and actual abuse of children. One study even suggests the contrary: that in an era in which pornography is freely and widely available on line, men are actually less libidinous. (I have my doubts about that; the rage to procreate is as powerful as the desire to eat.)

Hessick notes that in some states penalties for possession of child pornography can actually be more severe than the actual abuse of a child. In Arizona, for example, the law permits a sentencing authority to impose a 10 year sentence for each prohibited image in a defendant's possession. Thus, the Arizona courts have upheld a sentence of 200 years for a man convicted of possessing 20 images. In such regimes, rational predators actually have a greater incentive to abuse actual children than to look at dirty pictures. Yes, Virginia, the law really can be an ass.

Hessick repeats the common observation that the risk of stranger-danger is vastly overstated. While cases of  the abduction of children by those unknown to them are terrifying, they account for only seven percent of child abuse cases nationwide. Hessick wonders whether child pornography laws aren't really a weapon shooting at a fictional target -- the dirty old man seeking to gain entry to the home of an innocent stranger by barging through the computer screen. The real danger of actual abuse comes from those known to the child, a relative or caregiver with regular and unsupervised access to children. Focusing on child pornography displaces the anxiety about what is going on in our own homes when the lights go out.

A moral panic sweeps legislative chambers from one end of the country to other. Everywhere, sentences for possession of child pornography increase. Most judges are afraid to stand against this tsunami of grief for fear that they too will be swept away in the same crazy and unreasoning energy that brought us prohibition and a war on drugs. I recommend Hessick's article. It doesn't solve the problem of an unreasoning law applied in an unthinking manner. The article merely arms willing practitioners and reformers with the conceptual tools necessary to advance the cause of justice.

Child Sex: The New Crack?

Those of us who earn our living on the front lines of the criminal justice system are often too shell-shocked to recognize larger trends. But when things go beyond a mere trend, and take the form and shape of a tsunami, everyone notices. So I write today about allegations of sexual misconduct with minors, the latest tidal wave to inundate the courts. It is the new crack cocaine of the criminal justice system.

There was a time when it seemed as if every other call for representation was from some soul caught within the web of a federal indictment for conspiring to sell crack cocaine. Here's how the game was played: The feds would target a suspected dealer. They'd watch him, record his phone conversations, and then, after several weeks, sweep in and arrest every person who as much as touched a rock of crack. Those at the periphery of the action were expected to plead guilty and get favorable terms in exchange for fingering those at the center of the conspiracy.

These cases became an art form, with predictable acts, plots and characters. (Client: "We never talked about the coke on the phone." Lawyer: "Yes, I know you talked about shrimp. But tell me, what have you to corroborate that you were really in the business of selling seafood?") Once you've seen a couple dozen of these, you've pretty well seen them all.

Today new melodramas are unfolding. They all involve child sex claims. It seems that two of every three calls we get now comes from someone accused of either looking at child pornography on line, enticing a purported minor on line to have sex, or groping a niece or daughter of a friend. Law enforcement has got its game down pretty well now, so expect more and more of these cases to be brought until, for reasons as yet unforeseen, some new fashions sweeps lawmen off their feet.

I'm not the only lawyer to observe this trend. I live in a tiny jurisdiction, and cover courthouses throughout my state. Lawyers gossip about what they are doing. Many lawyers are stunned by the sudden volume in these cases. Sex, I say, is the new crack.

I doubt seriously that some new wave of lechery has overtaken our society. In terms of the actual contact between adults and minors, I suspect things are pretty much the way they have always been. Sometimes the wrong things go bump in the night. We no longer overlook these transgressions: Today we seek long periods of incarceration in the effort to banish untoward desire.

But what has changed in the ubiquity of images on the Internet. I represent plenty of young men who took their libido for a walk on line. Some of them got curious about things they might never try. They looked at pictures of forbidden acts. Now the state and federal government want them to go to prison. It seems like a waste of life and human potential.

Other young men dabble at sex on line. The forms this lust takes is sadly common. If I hear about another guy in his twenties promising an undercover cop posing as a 14-year-old girl that he will teach her to give oral sex like a porn star, I'll sigh a deep groan of despair. I fear that Dante's vision of Hell is far more interesting that the warp and woof of our contemporary sins. Lust is ugly; we bend in only so many grotesque ways.

But here is what I worry about: As law enforcement perfects the craft of prosecuting these cases the standard for when to prosecute will get lower and lower. I now represent a young man accused of possessing four images of child pornography on his computer. This calls for prison. If there were only three images, he'd go free. So we fight now about whether he actually looked at all four images, and whether that matters. Were lawmakers thinking when they passed laws calling for mandatory prison time?

Or consider a new statute in Connecticut, aggravated sexual assault in the first degree. Touch two or more children under the age of 13 in an improper manner, and you look a twenty-five year mandatory sentence dead in the eye. That's the same penalty as required for manslaughter with a firearm. The real import of a statute like this is to frighten defendants into a plea: anything to avoid the risk of trial, whether they are guilty or not.

We're in the grip of a strange moral panic. The end does not seem yet to be in sight.

It is far too easy for lawmakers to pass legislation requiring draconian sentences from within the antiseptic chambers of a legislative assembly. Who, after all, wants to appear to go easy on those who abuse children? But not all forms of abuse are identical, and neither are all defendants. Sometimes a mistake is just a mistake and the harm than comes of making it a crime dwarfs all justice. I wish that lawmakers were required to go to court to see their handiwork.

I wish that lawmakers could see that making child sex allegations the new crack cocaine of the criminal code is a manifest tragedy. I wish, finally, that each lawmaker were required to spend a few months behind bars to get a sense of what it is to live isolated and afraid. Is it to much to ask those who make the product to test drive what they are producing?

Is Tiger Woods A Sex Offender?

May's Vanity Fair is vintage soft porn. Accompanying Mark Seal's piece on Tiger Woods is a series of photographs of some of the golf legend's latest flames. Loredana Jolie Ferriolo bares her ass on a bed at the Walforf Astoria, the collagen in her lips trying, somehow, to say "come hither." Mindy Lawson's tongue nibbles a cherry and sits, looking about as appealing as a prison matron, in a red blouse all but open to a morals charge. And let's not forget the droopy chested Michelle Braun, who struts the hallway of the Breakers in Palm Beach, Florida.

But my favorite photo is that of Jamie Juners, snapped at the Cooper Hotel in New York City. I thought it was an advertisement at first, for an expensive fur shop. The sepia tones look like a shot for the New Yorker.

Sex sells, all right, and Tiger was buying. Spending $60,000 a weekend for the right girl didn't phase him, and why should it. He weighs his money. But the women who consented to be interviewed and photographed relay that Tiger is also cheap. No gifts for these babes. One recalls the only time Tiger ever bought her dinner. He was stopping at Subway. She asked him to pick up a wrap for her. He did, and then it was down to the wham-bam, thank-you- ma'am hustle of a man who cannot keep his pecker dry, even, apparently, for an evening.

It is a depressing read, even if it is, as is usually the case with a piece in Vanity Fair, wonderfully written.

In colonial times, back when adultery was a capital offense, Tiger might be swinging from a rope, together with Ms. Ferriolo. But times have changed. The 26-year-old has a world-class following of rich horn dogs who pay as much as $100,000 for an assignation. She is commonly ferried from one continent to another in private jets.

Tiger's skill with a golf club does not cross over to pick up lines. "You have a perfect body," he told Ms. Lawton on their first rutting. They were in the kitchen of his home. Tiger apparently liked trying out different locations in Windmere, Florida home. But the master bedroom was off limits. Respect for the sanctity of the marital sheets?

Ms. Lawton was as artless as Tiger. She took his penis in her hand in the glittering kitchen. "Wow," she tells Vanity Fair. "It was the biggest I've ever seen." Just how large was her survey?

A psychiatrist might struggle to figure out Tiger. He was married to a woman of legendary beauty, Elin Nordegren, who as a Swedish student was too busy to be bothered with glamor. You see, she has brains, too. She studied child psychology at Lund University in Scandinavia.

Tiger had wealth, a beautiful and intelligent wife, fame and power. So he tossed it all away chasing expensive call girls and women who marvel over comparative penis size. I don't quite get it.

Is he a sex offender? No. His tastes did not run to children or young women below the age of sixteen, the line the law now draws in lusts sandbox. But he is out of control: A libidinal train wreck. Tiger, you see, is the perfect example of a man who takes Madison Avenue literally.

There is a reason that Ms. Juner's come hither shot for Vanity Fair likes like the sort of advertisement that might appear in a tony Upper West Side magazine. She's the prize you are supposed to get if you succeed. Put your nose to the grindstone by day, and who knows where that nose won't go when the Sun, and, well ... goes down.

Tiger Woods is a tragic figure. But the tragedy is really an example of a culture gone haywire. Sex sells. We use it to motivate and inflame every consumer with hormones. Tiger had the money to make whores moan. No crime there, but it is morally tawdry.

I can't tell whether to pity or envy Tiger. Sure, he's lost everything of enduring value. His wife has left him, and taken their children. He is the laughing stock of the world, known as a hypocrite. But, when the lights go down, he takes the red dog walking in ways that, frankly, makes me smirk. He's what a middle aged man would be like if he lived in fraternity houses while running Goldman Sachs. The idea of living in a world without consequences appeals in a midnight, adolescent sort of way.

Tiger Woods is a sex offender. His lust is out of control. The law won't punish him, at least I've not yet heard of a warrant for soliciting prostitution. But the law's lines are arbitrarily drawn. The Puritans would have spanked him but good.

I'd like to see a poll about what college-age males really think of Tiger. I suspect in many quarters, he's more admired than ever. After all, he can buy as much sex as we can sell, and then sell stories about it magazines replete with glossy pictures. He got caught doing what the rest of us are supposed to dream about.

Tiger a sex offender? You bet. And so are the rest of us.

Padilla: A New Tool In Sex Offense Litigation?

It was reassuring to see the United States Supreme Court chip away at the collateral consequences doctrine in Padilla v. Kentucky. By ruling that criminal defense counsel have an affirmative obligation to advise their clients about the immigration consequences of a plea, the Court moved one step closer to reality. Let’s hope it is not the last step.

Padilla entered a guilty plea in a Kentucy court. His lawyer told him not to worry about the immigration consequences of the plea. Padilla had, after all, been in the United States for 40 years. So Padilla pleaded guilty. And deportation proceedings promptly began. He was on a one way ticket out of the land of the free.

When Padilla claimed that his lawyer was ineffective within the meaning of the Sixth Amendment, the Kentucky courts turned a deaf ear. Counsel had properly advised the client about the criminal consequences of his plea; immigration was merely collateral to the criminal plea. The Supreme Court said otherwise.

Our courts sidestep justice all the time by regarding the foreseeable consequences of a criminal conviction as merely incidental. Thus, in the case of a sex offender, courts permit convictions to stand when lawyers fail to make adequate warnings about all sorts of things, including the demeaning and often standardless manner in which so-called sex offender treatment is administered.

Does Padilla offer hope that the Courts will take a broader view of the punishing collateral consequences of a guilty plea to a sex offense?

It seems suddenly as if sex is the new crack. Hardly a day goes by in my office in which a young man does not call accused of either fondling a child, looking at child pornography, playing Romeo to some willing Juliet, or otherwise engaging in some other act of sexual misconduct. A decade ago, the phone rang almost as often with folks accused of participating in the sale of crack cocaine.

Are we enduring a new moral panic?

I’m not sure just why the American public always seems to need some unifying demon to hate. At various points, we turned our rage on alcohol, people of color, Communists, and, now sex. Somehow a stark contrast between good and evil seems to satisfy in a way that beholding shades of gray does not. Are good Americans required to be Manicheans?

Anyone accused of a sex offense really faces four harms. In my view, good lawyering requires advising a client about them all, and then doing what can be done to minimize the harm to the client arising from each of these harms.

The first two harms are obvious: the disabling effect of a felony conviction and imprisonment. These are the classic consequences of a conviction that all lawyers know and understand, although, I suspect, there may be some confusion regarding mandatory minimum sentences as these sentences change with legislative tastes.

The requirement to register on a sex offender registry and the need to participate in sex offender treatment as a condition of any probation are a direct and proximate consequence of a plea in most states. In other words, utter the word "guilty" and these consequences flow as irrevocably as, well, immigration problems.

If there is now a Sixth Amendment requirement to advise defendants of the immigration consequences of a plea, it follows that rights to due process and equal protection, and against cruel and unusual punishment, ought to be enforced in some meaningful way as to the consequences of a plea. It simply isn’t good enough to permit Courts to pass off miscarriages of justice arising from sex offender pleas as merely incidental consequences of a guilty plea.

Padilla v. Kentucky is important not just for the protection it offers to immigrants accused of crimes. It is important also as a new tool that just might help to mitigate the gratuitous harm done to those convicted of sex offenses. In the current climate of moral panic, we are failing to distinguish minor offenders from serial rapists. The result is a criminal justice system dealing out draconian consequences without meaningful review. Padilla offers the hope of change.

Reprinted courtest of the Connecticut Law Tribune.

A Letter To Barack Obama: Virginia, RSOL

Dear President Obama:

When you took office you promised to give a voice to the voiceless. You spoke of the audacity of hope. You promised to include those often forgotten and despised. I am appealing to you honor those promises now.

This past weekend you appeared on a television show called America's Most Wanted. You met with the show's creator on national television and listened to him call for yet more laws designed to get tough on crime. As you know, John Walsh is a tireless advocate for crime victims. He lost his own son to murder decades ago.

Immediately after appearing on America's Most Wanted, you were contacted by a group called Virginia Reform Offender Laws. The group asked for a meeting to talk about a class of victims who have no media spokesperson and who garner little sympathy. Members of the group would like to sit down and discuss with you the other America, those stigmatized for life as a result of conduct that often wasn't even criminal a century ago. There are hundreds of thousands of Americans living in fear of the shadows cast by laws that fail to draw meaningful distinctions between those who are a risk of future harm and the overwhelming majority of folks who simply make mistakes.

John Walsh and America's Most Wanted are powerful tools in what is often an hysterical over-reaction to isolate acts of horror. When a young woman is abducted, raped and murdered by a stranger, the nation rightly grieves. But tapping that grief for purposes of stiffing moral panic poorly serves the nation. Many of us were surprised that you agreed to appear on a television show that panders in fear and unresolved rage.

Virginia's, Reform Sex Offender Laws cannot offer you a national forum. There is no television show dedicated to Americans forgotten and scorned by the criminal justice system. But these other Americans are organizing in each and every state in the union to educate lawmakers that the sex offender hysteria is destroying lives. Virginia's group is among the most sophisticated in the nation: In recent weeks, the group has provided lawmakers in Virgina with a recent publication about the weaknesses in our laws regarding sex offenses.

The other America still looks to you for leadership, Mr. President. When the Virginia group called the White House earlier in the week to request a meeting, a promise was made to convey the request and to get back to the group. I am urging you to take a little time to sit down with representatives and hear what they have to say. You can still make a difference for the voiceless folks looking to you for hope. Please do not scorn them. That is the easy and convenient response. But it is a response that fails to look beyond appearances.

Obama on "Most Wanted"? Ugh!

Please tell me it's not true. Tell me President Obama did not appear on the 1000th edition of America's Most Wanted. Tell me he did not succumb to the fear-mongering hysteria that seeks to transform worst-cases scenarios into norms of public policy.

But it is true. The president sat for an interview with one of the angriest and most self-righteous men in the United States, John Walsh. He's the father of Adam Walsh, a little boy abducted and murdered several decades ago. Since then, we've all felt the pain of the Walsh family.

Is it only in America that we transform those undone by grief into celebrities?

Walsh is a hero to many Americans. His son was abducted and killed by a stranger. Because this should never have happened, Walsh wants to make sure it never happens again. He's been instrumental in playing to the moral panic that has made our nation's over-inclusive and draconian sex offender laws the target of international criticism. Human Rights Watch has taken note; last summer the Economist carried a front page story of our war against the very forms of desire we stoke with advertising and a culture drenched in cheap, easy and vulgar sensuality.

President Obama's decision to appear on America's Most Wanted was not the reasoned and measured response of a commander in chief committed to rule of reason. Obama sat with Walsh and was lectured by the talk-show host about the need to take DNA samples of every person accused of a felony. The president listened to a man who has lent his son's name to controversial federal legislation that has been declared unconstitutional in some federal courts and is destined for a Supreme Court challenge. What was Obama trying to accomplish with this appearance?

Obama promised change. But it's looking more and more like the same old stuff. Pandering to fear to keep the plebeians at bay; bailing out those too big to fail to keep the elite fat and sassy; promising to close Guantanamo, but now folding in the face of those critics who want men tried in secret. It's looking more and more like the same old stuff in D.C.

Shame On Lake Michigan College

An educated person is one capable of drawing distinctions. The goal is something akin to wisdom, or at the very least, mastery of the art of learning. But those skills are not apparently valued at Lake Michigan College. Hysteria will do there, and unreasoning moral panic.

LMC president Robert Harrison told the press recently that a new rule is about to be promulgated on the campus: sex offenders need not apply. The college intends on adopting a blanket prohibition against permitting any enrolled sex offender to step foot on the campus.

I wonder whether the campus police intend on interviewing faculty members to see whether there are unknown offenders on staff. Odds are, there are at least a few folks who had sex with a minor in the hazy and steamy days of their youth. And I suspect there are more than a few folks who touched places they ought not to have toucvhed. And what of urination in public? That's a sex offense, too, at least in some jurisdictions.

Apparently, the dead of students at the college just discovered that three undergraduates were registered sex offenders. The press does not report the underlying offenses of conviction. But the mere sound of it is chilling enough for the hysteria mongers at LMC.

Harrison says that the college has not yet decided if such a policy violates state and federal law. The college Board of Trustees is likely to consider adopting an official policy soon.

What a pitiable example of why our sex offender policies are haywire. Three young men, and they are certain to be men, are at the campus trying to get an education. Sure, they've erred. But they are on the road to rehabilitation. The blue noses at LMC don't see it that way, however.

Somehow, I doubt that this is an example of the "New Way of Thinking," the Benton Harbor, Michigan college hypes on its website. It looks like the same old hysteria to me.

Sex Offender Goofiness In Connecticut

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18 Percent Of Teens Are Sex Offenders?

The Pew Research Center's Internet & American Life Project reports that 18 percent of 800 youths aged 14-17 with cellphones reported receiving "sexually suggestive" nude or semi-nude images of someone they know. I suspect the number understates the extent of sexually charged horseplay on cell phones among the nation's youth. But tell me, truly, do you really think each and everyone of these kids is a criminal, or even a sex offender?

Sending a sexually suggestive picture of a minor over the Internet is a crime. The practice of sexting can land you in a federal prison. It can also put you behind state bars. And because sexting is a sex offense, you'll be required to register as a sex offender.

Oh, what I tangled web we are weaving with these silly laws.

My home state, Connecticut, is is guilty of this silliness as the next. But there is a ray of hope on the horizon. In the current session of the General Assembly, lawmakers have proposed legislation to transform sexting from a felony to a class A misdemeanor. It is a small step in a journey that really should end with decriminalization of curiosity and adolescent tomfoolery.
sex-offender registry.

Two Republican lawmakers from Naugatuck are pressing for a law lessen the penalty for sexting between consenting children. State Reps. Rosa Rebimbas and David Labriola propose the measure. Labriola is also a practicing lawyer and a regular in the Brass Valley criminal courts. I am heartened to see him proposing much needed legislation to dampen the hysteria associated with claims of sexual misconduct. The Legislature's Judiciary Committee plans a hearing on the proposal later this term.

It's hard to say where law enforcement stands on the issue. West Hartford Police Chief James Strillacci, speaking for the Connecticut Police Chiefs Association, said officers use their discretion in dealing with sexting. Officers are trying to protect children from the unforeseen consequences of their actions, he said.

But it is small comfort to leave discretion about whether to charge a crime, whether felony or misdemeanor, in the hands of a cop. What such discretion typically means is that the cop's kids and his friends get a pass. Those who are unpopular or unconnected stand a greater chance of falling on the wrong side of police discretion.

I don't want to look a gift horse in the mouth, but why stop at lessening the penalties associated with sexting between consenting minors. Why not decriminalize it altoghter. It shouldn't be a crime to be be curious.

Judge Richard Kopf's Road To Hell

I was inclined to greet news that a Nebraska federal judge issued an order enjoining the state from enforcing part of its new sex offender law with good cheer. "Finally," I thought, "a judge with the sense to see through the madness of these new laws." But then I read the decision, and I am now inclined to view United States District Court Judge Richard Kopf's decision as yet another road to Hell. This one is not even paved with good intentions.

The plaintiffs sought to bar Nebraska from enforcing harsh new requirements for the registration and monitoring of so-called sex offenders. State lawmakers approved new legislation to go into effect on January 1, 2010, as a means of retaining federal funding under the so-called Adam Walsh Child Protection and Safety Act of 2006, codified at 42 U.S.C. Section 16912. The act, known as SORNA to insiders, aspires to create a new national sex offender registry.

Nebraska did what all good states do when the feds threaten to turn off the spigot of free cash: it amended its laws to please federal paymasters. There's nothing unlawful about this, mind you. Constitutional lawyers don't regard this as the assertion of a federal police power, a notion anathema to the very concept of federalism. No, we maintain the police fiction that cash-strapped states are free to say no to generous federal funding: States that don't want to eat Uncle Sam's carrots are free to walk away.

But Nebraska did more than SORNA required. The state also enacted requirements not found in SORNA: namely, it required sex offenders who are not on parole or probation to sign consent forms permitting the state to search and seize their personal computers at will. It also barred non-supervised registrants from participating on social networking sites on which minors might appear.

The plaintiffs in the Nebraska action, who include the mother of a so-called offender, and an attorney who employs a so-called offender, sought to enjoin Nebraska from enforcing the law, and they filed papers in mid-December to block enforcement. On December 30, Judge Kopf issued an order upholding all aspects of the new Nebraska law except the provisions requiring unsupervised registrants to consent to searches of their computers and the barring them from participating on social networking sites.

The thinking goes something like this: Once an offender is not on probation or parole, he is free, and therefore the state cannot resitrict his Fourth Amendment right to be free from unreasonable searches and seizures. Neither can the state impede the right to free association and speech. I have news for you: Those rights will evaporate for sex offenders unless something changes.

Judge Kopf's decision is troubling for those who care about civil liberties.

The federal courts have long since concluded that registration is not punishment, a view that only a life-time appointee who must never look for a job, seek a place to live or worry about random knocks on the door by vigilantes can maintain. This repulsive abandonment of reason justifies registration by saying it is a mere regulatory requirement incident to conviction of certain offenses. Thus, it violates no constitutional right to be required to register, even without a particularized showing of harm. Let's just round up this new class of niggers and put them on a libidinal plantation.

Judge Kopf notes this line of cases and then concludes, somewhat paradoxically, that it is all right to require registration, a mere incident to conviction, but it is not all right to require registrants also to consent to random searches or stay off social networking sites. Don't get me wrong, I am relieved to see this constitutional line drawn. But my sense of the current climate of hysteria among lawmakers and judges is that this constitutional line will also be erased: what's a few random searches in the name of public safety if the folks were searching are already on the registry? And do we really want Uncle Ernie fiddling about on Facebook? You know the answer in terms of popular prejudice; it won't take long for the simpering class on the bench to fall into line.

And Judge Kopf is a cheerleader for the simpering class.

"In a democracy," he writes, "we have legislatures to make public policy choices, and a black robe does not legitimize nullification of those legislative decisions simply because I find them dumb or distasteful. On the contrary, '[i]f the people want to go to Hell, I will help them. It's my job.' Let's get at it."

It does not help that Judge Kopf cites Oliver Wendell Holmes for this eviscerated vision of a federal judge's role. Sure, the judge is literate, but to what end: cowardice? May I remind Judge Kolb that the judiciary is independent for a reason, and that the Bill of Rights was also enacted for a reason: Those reasons are common, Judge. To place certain things off bounds when lawmakers are moved by passion: that is what we refer to by the notion of checks and balances. Your job, Judge, is not to hide behind a black robe and then lose yourself in the bellowing mass of idiocy any legislative body can conceive in the dark of night. We expect more of a federal judge that passing the buck.

The Nebraska decision is a disgrace: A federal judge dancing glibly to Hell, and then all but laughing about it. Sad. Tragic. And worse, a sign of things to come. Reading between the lines, the judge is really sending a signal to Congress: Amend SORNA to do whatever you like, because, in the end, I will lack the courage to do anything at all to protect the rights of our new pariahs!

New Blog: Defending Sex Crimes

The barriers to entry into the blawgosphere are perishingly low, so forgive me for starting another blog. This one will be devoted to sex offenses and the defense of those accused of them. Here's the link, and the first post: http://defendingsexcrimes.blogspot.com/

A Sexophrenic Culture?

Let's face it, we are a sexophrenic culture. On the one hand, we celebrate and market sexuality: Turn on the television, look at a magazine advertisement, walk down a street: Sex sells everything from toothpaste to automobiles. We manipulate and cultivate desire.

Yet at the same time that we do this we also criminalize desire. We register sex offenders, charge folks with crimes for engaging in sometimes consensual behavior and fail to draw a line between fantasy and reality. Looking at the wrong photographs can land you in prison. Being mistaken about the age of a consenting partner can land you in prison. Engaging in the wrong kind of chat on line can land you in prison.

We're sexophrenic to the core.

A significant portion of my law practice is devoted to the defense of so-called sex crimes. Sometimes it is obvious that the behavior alleged should be a crime. There is nothing about a violent rape that does not offend. But often the conduct is more subtle: A 19 year-old man responds to a fifteen year old girl's overtures. It is a crime likely to land the man in prison.

How did we become sexophrenic? What impulse leads us to punish the very thing we encourage? I don't have many answers, but I have seen many lives undone in ways that defy reason and sound social policy. This page is dedicated to the defense of folks charged with sex crimes; it is not an endorsement of sex crimes.

Last week, I read a new book on sex crimes and offenders, entitled Reconsidering Sex Crimes and Offenders: Prosecution or Persecution? (Praeger, 2009)by Zilney and Zilney. The book confirmed many things I already knew. "Currenbtly," the authors write, "everything is related to sex: advertisers use sex to sell virtually every productm and society is inundated with sexual images and connotations on a daily basis." Lawmakers reacting to this sexual saturation often act in reponse to isolated harms, creating overbroad legislation that reaches far more broadly than the harm inspiring the new law.

Legislative momentum for enhanced sex offender registration. Thus, the 1994 rape and murder Megan Kanka helped inspire sex offender registries. Adam Walsh's murder helped strengthen registration requirements. But is the public protected from harm when folks engaged in consensual activity are required to register? Is public urination a sex offense? The media whips up moral panic when a stranger commits an act of sexual violence, yet most sex offenses are intrafamilial affairs. Does it make sense to criminalize errant desire in every form?

Zilney and Zilney argue persuasively that increased registration and stigmatization of sex offenders may actually frustrate efforts to rehabilitate folks who make mistakes. While recidivism rates for sex offenders are lower than rates for all criminal offenses, there is persuasive evidence that isolating exclusion of sex offenders from normal society and from employment opportunities increases the very stressors that encourage re-offending.

Of course, labeling a person a sex offender is the kiss of death. No one wants to come to the aid of a "pervert." So lawmakers pass ever more inclusive and resitrictive legislation, drawing more and more people in what amounts to virtual planatations. We fail to distinhuish serious crimes from petty crimes. In the rush to create a one-size-fits-all system, we tax overburdened services to the breaking point: is it any wonder that dangerous folks slip through the cracks?

I encourage folks to send me stories and anecdotes about our sexophrenic criminal justice system. Perhaps by focusing on failures in the form of over-reaching we will be able to learn enough to make intelligent requests for reform of the legal system.